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Youths fighting: ASBOs & IPNAs

Wrong turnings and joint enterprise – the new law restates the old.

Abdul Iqbal QC looks at the judgment delivered today in two important appeals relating to principal and secondary liability joint enterprise criminal law.

Introduction:

Today the UK Supreme Court and UK Privy Council delivered judgment in the related appeals of R –v- Jogee (Appellant) [2016] UKSC 8 and Ruddock (Appellant) –v- The Queen (Respondent) (Jamaica) [2016] UKPC 7.

The appeals related to the mental element of intent which needs to be proved by the prosecution when a defendant is accused of being a secondary party to a crime. The judgment in the appeals has been widely reported in the national press. What has changed as a result of the judgment?

The judgment relates to all cases involving principal and secondary parties to crime on a joint enterprise basis. This summary sets out briefly the law in this area as restated by the Supreme Court / Privy Council today.

Let us take a common scenario in cases of homicide. Two people (D1 and D2) decide to attack a third person (V). During the course of the attack, D1 produces a knife and stabs V fatally. D1 and D2 are arrested. They are both charged with murdering V. D1 is convicted of the offence of murder. D2 contends that, although he was involved in the attack, he was unaware that D1 possessed a knife, intended only to engage in a fistfight, and certainly he intended no serious harm to V.

Previous Law:

Since the decisions in Chan Wing-Siu –v- The Queen [1985] 1 AC 168 and R –v- Powell & English [1999] AC 1, the law in this area has been that a secondary party (D2) is guilty of crime B (for example, murder) if he foresaw that D1 might commit murder during D2’s continued participation with D1 in crime A (for example, assault occasioning actual bodily harm or violent disorder).

The result was that D1 would be guilty of murder if he killed with intent to kill or cause serious harm to V, whereas D2 would be guilty of murder by mere foresight that D1 might murder V whilst he assisted or encouraged a lesser offence.

The Supreme Court decided that this was illogical and unfair. In essence, the court accepted the argument that the test that had applied since the earlier decisions set the threshold too low for secondary parties. The net was cast too wide. The court said it had taken a wrong turning in those cases. Chan Wing-Siu and Powell & English had been wrongly decided. Argument presented to the court in those appeals had failed to reflect other case law that contradicted the cases relied upon in those appeals.

The mistake in Chan Wing-Siu and Powell & English was to treat foresight of crime B (for example, murder) by the secondary party as automatic authorisation by the secondary party of crime B rather than simply evidence (perhaps strong evidence) of an intention by the secondary party to assist or encourage crime B.

Principles from the Judgment:

So what is the position now? Well, guess what, the court said the old law was correct all along. The principal and secondary party must share the same intention to commit the offence that the principal commits.

The principles to take from today’s judgment are :

  1. Persons who commit a crime together are all guilty of it providing that each defendant either did the act complained of or assisted or encouraged it (“the bank robber assisted by the getaway driver and the radio communication expert lookout”) ;
  2. The mental element for secondary liability is intention to assist or encourage the crime committed by the principal itself (for example murder). In other words, the secondary party must share the intent to commit the offence committed by the principal ;It does not matter whether the encouragement or assistance from the secondary party is in relation to one or more offences, providing at least one of those offences is committed by the principal. The secondary party will be liable for the offence(s) committed by the principal if he encouraged or assisted the offence(s) with the same intent as the principal
  3. Nor does it matter whether there was a pre-existing agreement as to intention / encouragement between the principal and secondary party or whether the secondary party joined in spontaneously with the principal in committing the offence. The secondary party will be liable for the offence(s) committed by the principal if he encouraged or assisted the offence(s) with the same intent as the principal ;
  4. In cases of homicide, a secondary party (who does not intend to kill or cause serious harm) nonetheless assists or encourages the principal in an act of violence involving the risk of harm, where the principal ultimately murders V, will not escape criminal liability for the offence of manslaughter ;
  5. Evidence of for example a group attack by weight of numbers, or evidence that a secondary party knew of the possession of a weapon by the principal during an attack, will be evidence from which a jury could properly infer intention of the secondary party to assist or encourage the offence committed by the principal;
  6. Murder convictions sustained applying the principles in the now discredited cases of Chan Wing-Siu and Powell & English will not necessarily be overturned. The Court of Appeal Criminal Division will apply the usual “unsafe conviction” test for appeals within Section 2 of the Criminal Appeal Act 1968.

Applying the new law, the appeals in Jogee and Rutherford were allowed and their convictions for murder quashed.

Summary:

It seems to me the restatement of the law was much needed and is sensible. There will still be many multi-handed prosecutions for murder where group attacks occur. However the prosecution will need to focus more tightly on the intention of the secondary parties indicated by the evidence. The net will probably not be so widely cast from now on.

 

Abdul Iqbal QC is a favoured choice of counsel among both solicitors and lay clients. He is widely recognised for his skilful, tactical and robust advocacy in the most complex cases.